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IN THE COURT OF CRIMINAL

APPEAL OF THE NORTHERN

TERRITORY OF AUSTRALIA

No. CA 19 of 2005

ON APPEAL from (BR) Martin CJ in proceedings No. 20418849

BETWEEN:

THE QUEEN

          Appellant

AND:

GJ

         Respondent

SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

  1. SUBMISSIONS ON JURISDICTION, POWER AND DISCRETION

  1. The Australia Human Rights and Equal Opportunity Commission ('HREOC') seeks leave to intervene in the appeal or to be heard and submit argument through senior counsel as amicus curiae in the proceedings.


  2. Under the provisions of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (Cth) ('HREOC Act') and in particular sub-paragraph 11(1)(o) thereof, a function of HREOC is to seek leave of a court hearing proceedings and, subject to any conditions imposed by the court, to intervene in proceedings that involve human rights issues where the Commission considers it appropriate to so. As deposed to in paragraph 27 of the affidavit of John William von Doussa QC on 7 September 2005, HREOC resolved to seek leave to intervene in this appeal by the Director of Public Prosecutions.
  3. The Northern Territory Court of Criminal Appeal has both the jurisdiction and the power to permit HREOC either to intervene or to be heard through senior counsel as amicus curiae. The Court has jurisdiction and power to permit an intervention by reason of the nature and the manner in which the legislation established the Court and its jurisdiction.


  4. Because the word ‘jurisdiction’ is a generic term, it is apt to give rise to difficulty.(1) Similarly, the distinction between jurisdiction and power is often blurred but it may sometimes be important. (2) In this case, consistent with the use of the terms made by Justice Toohey in Harris v Caradine (1990-1991) 172 CLR 84, 136, ‘jurisdiction’ is used as the authority which a Court has to decide the range of matters that can be litigated before it and in the exercise of that jurisdiction the Court has ‘powers’ expressly or impliedly conferred by legislation governing the Court and such powers are incidental and necessary to the exercise of jurisdiction on the powers so conferred. (3)


  5. It is interesting how the Legislature has established the Court of Criminal Appeal under section 407 of the Criminal Code (NT) (‘Criminal Code’). By sub-section 407(1) of the Criminal Code, the Supreme Court is the Court of Criminal Appeal.



    The Supreme Court is given an extra appellate jurisdiction, in the main activated by an appellant who has been found guilty and who desires to appeal or seek leave to appeal under section 410, or an appeal by a Crown Law Officer who appeals under section 414.


  6. The Supreme Court referred to in section 407 of the Criminal Code is that Supreme Court established by section 10 of the Supreme Court Act(NT) (‘Supreme Court Act’) and which is also the superior Court of record for the Northern Territory by section 12 of the Supreme Court Act. The jurisdiction of the Supreme Court is set out in section 14 of the Supreme Court Act.
  7. Pursuant to section 14(1)(a) of the Supreme Court Act , the Supreme Court has, in relation to the Northern Territory, the same original jurisdiction both civil and criminal, as the Supreme Court of South Australia had in relation to the State of South Australia immediately before 1 January 1911. As Gallop J observed in Moses v Stephenson (1981) 10 NTR 32 at 32-33:

     

    since its creation by the Supreme Court Act of 1837 the Supreme Court of South Australia has had jurisdiction to administer justice in equity and such jurisdiction existed as at 1 January 1911. This Court, therefore, has jurisdiction to administer justice in equity ie the same jurisdiction as the Lord High Chancellor of Great Britain in relation to all acts, matters and things necessary for the due execution of equitable jurisdiction.

    In general terms, the Supreme Court is the Northern Territory's Court of unlimited jurisdiction.

  8. The general responsibility of the Supreme Court as a superior court of record of unlimited jurisdiction gives rise to its inherent power. (4)



    In the discharge of that responsibility it exercises the full plenitude of judicial power. In this way, like the Supreme Court of New South Wales in Grassby v The Queen, (5) the Northern Territory Supreme Court exercises an inherent jurisdiction. As Justice Dawson said of the New South Wales Supreme Court in Grassby v The Queen (6) : ‘Although conferred by statute, its powers are identified by reference to the unlimited powers of the Courts at Westminster’.


  9. It is submitted the Supreme Court sitting as the Northern Territory Court of Criminal Appeal has the inherent jurisdiction to permit intervention by a person sufficiently interested. The early case of Corporate Affairs Commission v Bradley [1974] NSW LR 391 at 398 is expressly against this proposition. But this case has been confined and its authority doubted in later decisions and the thrust of authority is that intervention can be permitted in the inherent jurisdiction of the Court: see Rushby and Another v Roberts and Another [1983] 1 NSW LR 350, 353-355; United States Tobacco Company v Minister for Consumer Affairs and Others (1988) 20 FLR 520, 534; re Boulton and Others; Ex Parte State of Victoria and Another (1994) 126 ALR 620, 626; Breen v Williams (1994) 35 NSW LR 522, 532 -533.


  10. Alternatively, this Court is given the power to permit intervention under section 419 of the Criminal Code. This Court may, ‘if it thinks necessary or expedient in the interests of justice’, exercise in relation to these proceedings ‘any powers that may for the time being be exercised by the Supreme Court on appeals or applications in civil matters.’ This is a broad supplemental power which, it is submitted, also permits leave being granted to allow intervention by HREOC. Under the Rules of the Supreme Court Order 9, specifically 9.06(b)(i), HREOC could be permitted to be joined as a party as an intervener.


  11. The application of section 419 is conditional on the Court's thinking it ‘necessary or expedient’. The natural, ordinary meaning of the word ‘expedient’, that is, ‘suitable, appropriate; a means of attaining an end; a resource’, (7) supports the view, it is submitted, that it would be ‘expedient in the interests of justice’ to grant HREOC leave to intervene.



    Alternatively, the reference to ‘necessary’ it is submitted does not mean ‘essential’. Rather, in its context in section 419 ‘necessary’ means ’subjected to the touchstone of reasonableness’. (8) That is, where the Court thinks that intervention or the exercise of the other supplemental powers is reasonably required in the exercise of its jurisdiction it can permit intervention. Section 419 of the Criminal Code confers wide discretionary powers on the Court of Criminal Appeal; see, in the context of the power to receive further evidence, the comment of Mildren J in Mununggurr v The Queen (1994) 4 NTLR 63 at 75.7.



    Similarly, the word ‘necessary’ as used in Rule 9.06(b)(i) of the Supreme Court Rules it is submitted should not be taken to mean ‘essential’ and should be given the wider interpretation above.


  12. By reason of the matters set out in the affidavit of Mr von Doussa QC and filed herein in support of the application, and the express statutory conferral of the function of intervention in section 11(1)(o) of the HREOC Act, it is submitted HREOC has the necessary legal interest to apply for leave to intervene.

    DISCRETION

  1. If the Court is satisfied that it has the jurisdiction and power to permit intervention, it is submitted that this is one of those cases where in the exercise of its discretion the Court should permit intervention.


  2. It is no easy task for an outsider to obtain leave to intervene as a party in a proceeding. The general principle is that the parties are entitled to carry on their litigation free from interference from others who are effectively strangers to the proceedings: see United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 at 534; re:Boulton and Others; Ex Parte State of Victoria and Another (1994) 126 ACR 620, 626-627.


  3. Observations in two cases give some helpful guidance as to the exercise of the discretion. The first case is Trop Nominees Pty Ltd v Liquor Licensing Commission [1987] 46 SASR 255 at 266 where Legoe J said:

    Apart from the express statutory authority for such intervention it would appear that the non party intervention may only be allowed where the intervener can provide arguments or facts which will contribute to the Court's reaching an informed decision, and where the significance of those arguments or facts is sufficient to outweigh any expense and/or delay which may be caused to the parties by such intervention.

  4. The second observation is that of Brennan J in Levy v Victoria (1996-1997) 189 CLR 579 at 603 where his Honour said:

     

    However, where a person having the necessary legal interest to apply for leave to intervene can show that the parties to the particular proceeding may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene. The grant may be limited, if appropriate, to particular issues and subject to such conditions, as to costs or otherwise, as will do justice as between all parties. In that situation, intervention may prevent an error that would affect the interests of the intervener. Of course, if the intervener's submission is merely repetitive of the submission of one or other of the parties, efficiency would require that intervention be denied (84).


  5. HREOC has been granted leave to intervene in a number of proceedings involving human rights issues in a range of jurisdictions including the High Court of Australia,(9) as well as in a matter heard by the Criminal Division of the Supreme Court of New South Wales (R v Cheung, Unreported, Badgery-Parker J., 26 November 1992).(10)


  6. Factors relevant to the exercise of the discretion in this case are:
  1. the sentencing exercise raised issues relating to human rights and human rights principles in relation to which Australia, as a result of ratifying a number of international human rights treaties,(11) has assumed obligations to ‘respect and ensure’ to all individuals within its territory.(12) The Commission is an independent statutory body established by the HREOC Act that has been provided with specific legislative functions and responsibilities for the protection and promotion of those human rights (as defined).(13) This includes the function under s 11(1)(o) of the HREOC Act to seek leave to intervene in proceedings that involve human rights issues.


  2. The significance of the sentencing exercise and the balance struck could have precedent value in future cases involving the Aboriginal community or persons in promised marriage relationships and promise relationships generally.


  3. The proceedings are an appeal, so the facts are closed and the impact of any intervention will be less than of intervention at first instance.


  4. The parties may not present submissions as fully as would HREOC on the issue of the role of international human rights principles in the consideration to be given to Aboriginal customary law in the sentencing process. They essentially did not do so in their submissions before the Court below on 11 August 2005.


  5. My researchers and those of HREOC disclose that this Court has not yet considered the role of international human rights principles where consideration has been given to Aboriginal customary law in the sentencing process. So this is similar to a test case as to the inter-relationship of international human rights principles and norms where consideration is given to Aboriginal customary law in the sentencing process.

AMICUS CURIAE

  1. Even if the Court declines to grant leave to HREOC to appear as an intervener and make submissions, HREOC seeks to be heard through counsel as amicus curiae on the issue of the inter-relationship of international human rights principles in the sentencing process involving Aboriginal customary law.


  2. The power of Courts to permit the involvement of an amicus curiae is well established in the common law world and goes back to Lilburne's Case (1649) 4 State Trials 1269; see Johnson v Sammon (1973) 7 SASR 431, 433; Breen v Williams (1994) 35 NSW LR 522, 533.


  3. A much less rigid approach applies to hearing from an amicus curiae than to permitting intervention as a party; see Hutley JA in Corporate Affairs Commission v Bradley back in 1974, and see the observations and review of cases by Kirby P in Breen v Williams (supra) at p 532.


  4. Nevertheless, the involvement of an amicus curiae is still a matter for the Court's discretion. As Brennan J said in Levy v State of Victoria (supra) at p 604:

    The hearing of an amicus curiae is entirely in the Court's discretion. That discretion is exercised on a different basis from that which governs the allowance of intervention. The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted.

    His Honour noted at footnote 87 an example of the hearing of a person as amicus curiae. The case cited by His Honour was David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 where the Australian Securities Commission appeared as amicus curiae in a case involving the interpretation of the sections of the Corporations Law (Cth).


  5. HREOC seeks to assist the Court in its deliberations and make submissions on the law, at least as amicus curiae.


  6. It is submitted that HREOC ought to be given leave to intervene in the appeal, or, at the very least as amicus curiae.

INTRODUCTION

  1. SUBMISSIONS ON THE APPEAL

  1. The resolution of the complex issues that this case raises will be assisted by a consideration of international human rights law principles and jurisprudence. The Court may have regard to this source of jurisprudence as an aid to statutory interpretation and as a legitimate influence on the development of the common law, each of which is discussed in turn below.
  2. It can also be observed that while treaty obligations are entered into by the Commonwealth, Article 50 of the International Covenant on Civil and Political Rights (‘ICCPR’) provides that its provisions ‘extend to all parts of federal States without any limitations or exceptions’. Compliance by Australia with its human rights obligations depends in large part upon the application of State and Territory laws and the interpretation and application of those laws should therefore ensure and promote compliance with human rights obligations arising under the ICCPR.(14)
  3. As will be developed in the Submissions, the provisions of the Sentencing Act 1995 (NT) (‘Sentencing Act’) ought to be interpreted in the context of and consistent with human rights principles that are recognised in the international treaties to which Australia is a party. Such international human rights principles are also relevant to the balance that must be achieved in sentencing decisions involving customary Aboriginal law. Further, a sentence which leads to impermissible discrimination against a woman or a child under international human rights principles is an error of law both in the balancing exercise under the provisions of the Sentencing Act and under the common law.

    STATUTORY INTERPRETATION AND DEVELOPMENT OF THE COMMON LAW INFORMED BY INTERNATIONAL HUMAN RIGHTS LAW

  4. It is a long-established presumption that a statute is to be interpreted and applied, as far as its language admits, so as not to be inconsistent with the comity of nations and established rules of international law.(15) The High Court has expressed the presumption as operating in cases of ambiguity. Where there is ambiguity, the Court has held, courts should favour a construction of a statute which accords with the obligations of Australia under an international treaty.(16) This is because common sense indicates that Parliament intended to legislate in accordance with Australia's international obligations.(17)


  5. The concept of ‘ambiguity’, in this context, is not intended to impose a severe constraint upon reference to international obligations. In principle, it is merely the obverse of the coin of Parliamentary supremacy: if Parliament expresses a clear intention to legislate in consistency with Australia's international obligations, that intention must be given effect by the courts. As noted by Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh :(18)

    In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail.


  6. In the present case, the Notice of Appeal filed on 31 August 2005 sets out the grounds upon which the Appellant contends the sentencing judge erred in sentencing the Respondent. Section 5(2) of the Sentencing Act sets out the matters a court must have regard to in the sentencing of an offender. It is the balancing of each of those matters in the circumstances of a particular case where the relevant ambiguity can be said to arise and, in doing so, international human rights law is available as a source of jurisprudence that the Court can legitimately draw on to assist it in its consideration of whether the appropriate balance was achieved by the sentencing judge.


  7. The common law also continues to be an important source of guidance in sentencing decisions.(19) In particular, the Hansard debates relevant to the passage of the Sentencing Act indicate that it was the view of the legislators that Aboriginal customary law issues should continue to be dealt with by the courts ‘using their discretion at common law to take the exercise of customary law into account as part of the sentencing process.’(20)


  8. The operation of common law principles is also susceptible to the influence of international customary law and treaty obligations. In Mabo (No. 2), Brennan J stated:(21)

    The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration.


  9. It has also been said that where the common law is uncertain, the Court should prefer an answer in conformity with international norms.(22) It would be incongruous that Australia should adhere to international human rights treaties such as the ICCPR if Australian courts did not, in some fashion, recognise the entitlements contained therein.(23) In particular, Australia’s accession in 1991 to the First Optional Protocol to the ICCPR has brought to bear upon the development of the common law, the powerful influence of the Covenant and the international standards it imports.(24)


  10. To adopt such an approach is merely to recognise that values of justice and human rights (especially equality before the law) are just as much aspirations of the contemporary Australian legal system as they are of the international legal regime.(25) In Mabo (No 2), in holding that an unjust and discriminatory doctrine which refused to recognise the rights and interests in land of the Indigenous inhabitants could have no place in the contemporary law of this country, Brennan J confirmed that the expectations of the international community in this regard accord with the contemporary values of the Australian people. His Honour held that it would be contrary both to international standards and to fundamental values of the common law to entrench a discriminatory rule, which because of the supposed position on the scale of social organisation of the Indigenous inhabitants of a settled colony, denied them a right to occupy their traditional lands.(26)


  11. An important feature of the common law lies in the ability of the courts to mould the law to correspond with the contemporary values of society. As stated by Brennan J in Dietrich: (27)

    Changes in the common law are made whenever a judge thinks a change desirable. There must be constraints on the exercise of the power, else the courts would cross 'the Rubicon that divides the judicial and legislative powers' … . The law must be kept in logical order and form, for an aspect of justice is consistency in decisions affecting like cases and discrimination between unlike cases on bases that can be logically explained.

    The development of sentencing principles in the criminal law in conformity with Australia’s international human rights obligations would both achieve the objective of keeping the law in logical order and form, and accord with the contemporary values of the Australian people, particularly in circumstances where in issue is the appropriate weight to be accorded between, amongst other factors, an offender’s understanding of his rights and obligations under Aboriginal customary law and the seriousness of a sexual offence committed against a child.

     

    APPLICATION OF PRINCIPLES OF INTERNATIONAL HUMAN RIGHTS LAW

  12. The Commission submits that any consideration given to Aboriginal customary law in the sentencing process in a case such as the present should be carried out consistently with human rights principles that are recognised in the international treaties to which Australia is a party. As will be outlined in the following paragraphs, under these treaties, the recognition and protection given to the cultures of minority groups or the collective rights of indigenous peoples, however those cultural or collective rights are described, (28) must be balanced against the rights of individuals, including those of indigenous women and children, and cannot prevail over the individual human rights to be free from violence and discrimination.

  13. Article 27 of the ICCPR establishes the rights of minority groups:

    In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

  14. 38. The United Nations Human Rights Committee has noted that this provision applies to indigenous peoples and that it creates a positive obligation on States to protect such cultures.(29) However, the same Committee also notes that ‘none of the rights protected under Article 27 of the Covenant may be legitimately exercised in a manner or to an extent inconsistent with other provisions of the Covenant’.(30)


  15. These other provisions include Article 7 (prohibition of torture or other cruel, inhuman or degrading treatment)31 and Article 3 (equality between men and women). In considering the relationship between protecting minority rights and the rights of women to equality under Article 3 of the ICCPR, the Committee has confirmed the importance of upholding women’s rights:

    Inequality in the enjoyment of rights by women throughout the world is deeply embedded in tradition, history and culture, including religious attitudes… States should ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women's right to equality before the law and to equal enjoyment of all Covenant rights…



    (32)The rights which persons belonging to minorities enjoy under Article 27 of the Covenant in respect of their language, culture and religion do not authorise any State, group or person to violate the right to the equal enjoyment by women of any Covenant rights, including the right to equal protection of the law.(33)


  16. Specific mention is also made of the obligation under Article 24 of the ICCPR to protect female children from ‘all cultural or religious practices which jeopardize [their] freedom and well-being’.(34)


  17. The provisions of the ICCPR are also to be read consistently with the interpretation of similar relevant rights under other conventions such as the International Convention on the Elimination of All Forms of Discrimination Against Women (‘CEDAW’) and the Convention on the Rights of the Child (‘CRC’).


  18. The rights enshrined in CEDAW broadly cover all aspects of women’s lives including political participation, health, education, employment, marriage, family relations, equality before the law and freedom from discrimination. The right to freedom from violence is accepted as implicit in the right to freedom from discrimination under CEDAW.(35) The Convention also requires that all appropriate measures should be taken to ‘modify the social and cultural patterns of conduct of men and women’ so as to eliminate ‘prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women’.(36) In this regard, the Committee on the Elimination of Discrimination Against Women has noted that:(37)

    Traditional practices by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion, such as family violence and abuse, forced marriage, dowry deaths, acid attacks and female circumcision. Such prejudices and practices may justify gender-based violence as a form of protection or control of women. The effect of such violence on the physical and mental integrity of women is to deprive them of the equal enjoyment, exercise and knowledge of human rights and fundamental freedoms... the underlying consequences of these forms of gender-based violence help to maintain women in subordinate roles and contribute to their low level of political participation and to their lower level of education, skills and work opportunities.

  19. It is noted that in the present case, the grounds of appeal address the weight given to the respondent’s traditional beliefs and not the validity, or otherwise, of the correctness of the accused’s understanding of those customary laws (Notice of Appeal filed 31 August 2005, paragraph 5(iii)). The Commission therefore does not seek to make any submission about the content of the customary law relied on by the accused in this case, other than to note that the content cannot be given such weight as to detract from the principle of equality of women or the protection of vulnerable children.(38)


  20. The particular vulnerability of children is recognised by the CRC. Similar to the ICCPR, the CRC specifically recognises the right of Indigenous children to enjoy their own culture in community with other members of his or her own group.(39) However, States Parties have obligations to protect children from all forms of sexual abuse(40) and all other forms of exploitation prejudicial to any aspects of the child’s welfare.(41)


  21. As the High Court observed in Veen v The Queen (No.2):(42)

    [S]entencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case.

  22. His Honour Justice Mildren has observed, extra-curially, that equally difficult in the sentencing process is ‘balancing matters going to mitigation against the seriousness of the offending.’(43) While noting that how this achieved in practice is not easy, his Honour states that there ‘are limits beyond which traditional customary law or other factors which have been recognised as mitigating in the sentencing of Aboriginal (sic) can have any significant weight, as for instance in the case of repeat offenders or offenders who are a danger to the public.’(44)


  23. The sentencing exercise to be undertaken in a case such as the present one is no less difficult, and is one that has been considered in other matters.(45) As a general principle, the Court of Criminal Appeal of the Northern Territory has noted that:(46)

    The courts have been concerned to send what has been described as ‘the correct message’ to all concerned, that is, that Aboriginal women, children and the weak will be protected against personal violence insofar as it is within the power of the court to do so.

    A similar view was expressed in an earlier case in which the Court stated:(47)

    Women, including Aboriginal women, stand equal to men in the law of the Northern Territory and, if Aboriginal traditional laws do come to receive recognition in whatever form by the general law of the Territory, I think it is highly unlikely, in view of international treaties that Australia has signed, if a law such as has been explained to me will have any standing because it is – I regret to have to say this to you in the presence of Elders, but it is, in my view, of such a nature that people in many countries would hold it to be discriminatory and I believe the Discrimination Boards of this country and missions and whatever would call it discriminatory.

  24. Considerations of customary law in the context of the criminal sentencing process have also been considered in an international context. For example, in S v Mvamvu ,(48) a decision of the Supreme Court of Appeal of South Africa, the Court heard an appeal by the State against the sentence imposed on the accused for the multiple rape, abduction and assault of the accused’s customary law wife. In considering the accused’s personal circumstances, the Court stated:(49)

    It is clear from his evidence that at the time of the incidents the accused honestly (albeit entirely misguidedly) believed that he had some ‘right’ to conjugal benefits. His actions, though totally unacceptable in law, might well be (albeit only to a limited extent) explicable given his background. He grew up and lived in a world of his own, of tradition and Black medicine – which was not completely strange to the complainant (they grew up together and come from the same area). His actions were shaped and moulded by the norms, beliefs and customary practices by which he lived his life. Though the rapes were accompanied by some acts or threats of violence, it does not appear that the prime objective was to do the complainant harm. The key aim, it seems, was to subjugate the complainant to his will and to persuade her to return to him – a consequence of male chauvinism, perhaps associated with traditional customary practices. That these traits or habits are difficult to discard appears to have been true of the accused. The complainant’s rights to bodily integrity and dignity and her entitlement to have these rights respected and protected were not foremost amongst his concerns. These ingrained traits and habits of the accused cannot be ignored when considering an appropriate sentence. He wanted the complainant back home, as his wife - in one piece. The threats he made were empty, albeit designed to frighten her.

  25. The Court of Appeal ultimately granted the appeal, and increased the sentence of imprisonment, having balanced the personal circumstances of the accused against the community’s demand for the imposition of heavy sentences on perpetrators of sexual offences against women, the seriousness of the offences, and the benchmark provided by the legislature for the offences of rape.(50)


  26. In issue in the present case is the appropriate weight to be accorded between, amongst other factors, an offender’s understanding of his rights and obligations under Aboriginal customary law and the seriousness of a violent sexual offence committed against a child. It is submitted that such a case steps beyond the limit referred to by His Honour Justice Mildren (paragraph 46 above), and is one in which the accused’s understanding of traditional customary law is relevant to the sentencing process, but its relevance must be outweighed by the relevance of the rights of the child where the offence committed against the child is as serious as the offence in this case.


  27. This accords with the position in international human rights law that, while all attempts should be made to reconcile the rights of individuals with the rights of Indigenous peoples to retain and enjoy their culture, the individual human rights, particularly those of children recognised by the CRC, must ultimately prevail and, it is submitted, must be accorded due weight in any sentencing process. The Commission submits that in this case, the correct balance was not achieved between the accused’s traditional beliefs and the rights of the child. 52. With great respect to the Chief Justice who was confronted with a very difficult situation and sentencing task, his sentencing remarks do not set out the details of any consideration that he gave to relevant international human rights principles. Unfortunately, counsel for the parties did not address the learned Chief Justice in any significant way on these issues and he, therefore, did not have the assistance by way of submissions on this aspect that he was entitled to have.

Endnotes

  1. Lipomar v The Queen (2000) 200 CLR 485, SIC, paragraph [78]; Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20 at paragraph [68].
  2. Harris v Caladine (1990-1991) 172 CLR 84, 136.
  3. See also: Parsons v Martin (1984) 5 F.C.R. 235, 241; Jackson v Sterling Industries Ltd (1987) 162 CLR 612, 630-631.
  4. Grassby v The Queen (1989) 168 CLR 1, 16; Perechowski v Registrar, Court of Appeal (1999) 198 CLR 435, 451.
  5. (1989) 168 CLR 1.
  6. Ibid, at 16.
  7. The Concise Oxford Dictionary ,Ninth Edition, Clarendon Press, Oxford. See also Riddle v Riddle (1952) 85 CLR 202, where the ordinary natural grammatical meaning of ‘expedient’ was given as ‘advantageous’, ‘desirable’ and suitable to the circumstances of the case’: at p222 (Williams J).
  8. See: Perechowski v Registrar, Court of Appeal (1999) 198 CLR 435, 452 and cited cases.
  9. See, for example, Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Langer v Australian Electoral Commission (1996) 186 CLR 302; Croome & Toonen v State of Tasmania (1997) 191 CLR 119; Kartinyeri v Commonwealth (1998) 195 CLR 337; Western Australia & Ors v Ward & Ors (2002) 213 CLR 1; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441; Re McBain: Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji (2004) 78 ALJR 1156; Al Kateb v Godwin (2004) 78 ALJR 1099; Re Woolley; Ex parte Applicants M276/2003 by their next friend GS (2004) 79 ALJR 43.
  10. The Commission has intervened in approximately 44 matters since 1988. A complete list of these matters can be accessed at: https://humanrights.gov.au/our-work/legal.
  11. Including, relevantly, the rights recognised in the International Covenant on Civil and Political Rights (opened for signature 16 December 1966 , 999 United Nations Treaty Series 171; entered into force 23 March 1976 except article 41 which came into force 28 March 1979; ratified by Australia 13 August 1980 except article 41 which was ratified by Australia 28 January 1993); the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (signed by Australia on 17 July 1980; United Nations Treaty Series 1249; entered into force on 27 August 1983; ratified by Australia 28 July 1983); and the Convention on the Rights of the Child (opened for signature 20 November 1989 , 1577 United Nations Treaty Series 3; entered into force 2 September 1990; ratified by Australia 17 December 1990; declared an international instrument for the purposes of s 47(1) of HREOC Act on 22 December 1992; gazetted 3 January 1993).
  12. Article 2(1) of the ICCPR.
  13. For the purposes of Part II Division 2 of the HREOC Act, the phrase ‘human rights’ is defined in section 3 to mean the rights and freedoms recognised in ICCPR, declared by the Declarations (that is, the Declaration of the Rights of the Child, the Declaration on the Rights of Disabled Persons and the Declaration on the Rights of Mentally Retarded Persons), or recognised or declared by any relevant international instrument (that is, the CRC and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief). Functions are also conferred on HREOC by s 48(1) of the Sex Discrimination Act 1984 (Cth) (‘SDA’), including the function to promote an understanding and acceptance of, and compliance with, the SDA (section 48(1)(d)) and other research and educational functions for the purpose of promoting the objects of the SDA (sections 48(1)(e) and (f)). The objects of the SDA include giving effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (section 3(a)) and to promote the recognition and acceptance within the community of the principle of equality between men and women (section 3(d)).
  14. This approach is recognised by the principle stated in Kartinyeri v Commonwealth (1998) 195 CLR 337, in which it is stated that ‘a statute of the Commonwealth or of a State is to be interpreted and applied, as far as its language permits, so that it is not in conflict with the established rules of international law’: at p384 (Gummow and Hayne JJ) (emphasis added). See also Ballina Shire Council v Ringland (1994) 33 NSWLR 680, 688 (Gleeson CJ), 710 (Kirby J).
  15. Leroux v Brown (1852) 12 C.B. 801; The Zollverein (1856) Swab. 96; The Annapolis (1861) Lush. 295; Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309; Zachariassen v Commonwealth (1917) 24 CLR 166. See also Maxwell on the Interpretation of Statutes (7 th Ed, 1929) at 127.
  16. Chu Kheng Lim v Minster for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 38 (Brennan, Deane and Dawson JJ).
  17. Dietrich v The Queen (1992) 177 CLR 292, 306-07 (Mason CJ and McHugh J); also Minister for Foreign Affairs and Trade v Magno (1992) 112 ALR 529, 534 (Gummow J).
  18. (1995) 183 CLR 273, 287-288.
  19. See, for example, Wynbyne v Marshall(1997) 117 NTR 11, 16-17 (Mildren J with whom Bailey J agreed); ‘Sentencing Principles’, Northern Territory Supreme Court (2005) http://www.nt.gov.au/ntsc/doc/sentencing_remarks/2005/09/index.html; and more generally, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, [126] (McHugh J).
  20. Northern Territory, Second Reading Speech Parliamentary Record no. 10, Seventh Assembly First Session, 16 May 1995, p3394, Mr Finch, Attorney General .This position does not appear to have been displaced by the passing of the Sentencing Amendment (Aboriginal Customary Law) Act 2004 (NT) which was intended to ‘provide a fair framework for the presentation of information on customary law’ when a Court is sentencing an Aboriginal person for a criminal offence: Northern Territory, Second Reading Speech Parliamentary Record No. 22, Ninth Assembly First Session, 13 October 2004, Dr Toyne, Attorney General.
  21. Mabo v Queensland (No 2) (1992) 175 CLR 1, 42 (Brennan J (with whom Mason CJ and McHugh J agreed)); Dietrich v The Queen (1992) 177 CLR 292, 306-07 (Mason CJ and McHugh J), 319-321 (Brennan J), 360 Toohey J; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, 499 (Mason CJ and Toohey J; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 288-289 (Mason CJ and Deane J).
  22. Ballina Shire Council v Ringland (1994) 33 NSWLR 680, 687-88 (Gleeson CJ), 699, 709-710 (Kirby P).
  23. Dietrich v The Queen (1992) 177 CLR 292, 321 (Brennan J).
  24. Mabo v The State of Queensland (No 2) (1992) 175 CLR 1, 42 (Brennan J).
  25. Ibid, 30 (Brennan J (with whom Mason CJ and McHugh J agreed)).
  26. Ibid, 42 (Brennan J).
  27. Dietrich v The Queen (1992) 177 CLR 292, 320 (Brennan J).
  28. It is noted that customary law systems are not frozen in time and should be interpreted in a dynamic way. The nature or observance of customary law can change as a result of interaction with new influences, such as the western law and the application of human rights standards. This includes addressing contemporary issues relating to violence against women and children. In successive cases, the Supreme Court of Canada has noted that aboriginal rights must be interpreted flexibly so as to allow for their evolution over time and has stressed that an approach that freezes these rights must be rejected: R v Sparrow [1990] 1 SCR 1025; R v Van der Peet [1996] 2 SCR 507; Delgamuukw v British Columbia [1997] 3 SCR 1010. In the Navajo Supreme Court case, In re Estate of Bigthumb (No. WR-CV-28-87 (Navajo 01/20/1989), the Navajo Supreme Court case found that one Navajo custom, described as the ‘expected compensation for sexual favors’ had been overridden, not by legislative action but instead because ‘of the ever changing Navajo common law through the introduction of Anglo-American customs and traditions (common law)’. Because of the often dynamic nature of tribal custom, difficulties may arise when it comes time to identifying and applying the relevant custom. The prescription for this difficulty, according to the Navajo Supreme Court in Lente v. Notah, 3 Nav. R. 72 (Navajo 05/25/1982), is close attention to context and experience: ‘The danger in using Navajo custom and tradition lies in attempting to apply customary principles without understanding their application to a given situation. Navajo custom varies from place to place throughout the Navajo Nation; Old customs and practices may be followed by the individuals involved in a case or not; There may be a dispute as to what the custom is and how it is applied; or, a tradition of the Navajo may have so fallen out of use that it cannot any longer be considered a “custom’’.’ See also Smith v. Colville Confederated Tribes, 25 ILR 6156, 2 CTCR 67, 4 CCAR 58 (Colville Confederated 05/07/1998).
  29. Human Rights Committee, General Comment 23 - Article 27, para 7, in Compilation of General Recommendations adopted by Human Rights Treaty Bodies, UN Doc: HRI/GEN/1/Rev.7, 12 May 2004, 160. Australian courts have accepted that guidance as to the meaning and effect of international conventions may be gathered from the writings and decisions of learned authors , foreign courts , and expert international bodies: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 392 per Mason CJ , 396-7 and 399-400 per Dawson J , 405 per Toohey J , 416 per Gaudron J , 430 per McHugh J; Somaghi v Minister for Immigration , Local Government and Ethnic Affairs (1991) 31 FCR 100 at 117 per Gummow J; Commonwealth v Hamilton (2000) 108 FCR 378 at 388 per Katz J; Commonwealth v Bradley (1999) 95 FCR 218 at 237 per Black CJ; Fothergill v Monarch Airlines Ltd [1981] AC 251 at 294-5 per Lord Scarman. The United Nations Human Rights Committee is an international body of jurists , which hands down reasoned decisions , referring to earlier precedents and manifesting consistent and principled decision-making: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [54] per McHugh & Gummow JJ; see also Tangiora v Wellington District Legal Services Committee (New Zealand) [2000] 1 NZLR 17; [2000] 1 WLR 240. As such , the decisions of such a body, including its General Comments, are an appropriate source of guidance as to the meaning and effect of the ICCPR.
  30. Human Rights Committee, General Comment 23 - Article 27, para 8, in Compilation of General Recommendations adopted by Human Rights Treaty Bodies, UN Doc: HRI/GEN/1/Rev.7, 12 May 2004, 160. The need for recognition of Indigenous customary law, in conformity with international human rights law, has also been acknowledged in other international fora. See, for example, ‘Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people’, Mr Rodolfo Stavenhagen, Conclusions and Recommendations of the Expert Seminar on Indigenous Peoples and the Administration of Justice, UN Doc: E/CN.4/2004/80/Add.4, 27 January 2004, page 7; Committee on the Elimination of Racial Discrimination, Draft General Recommendation on the Prevention of Racial Discrimination in the Administration and Functioning of the Criminal Justice System), para I.2(5), UN Doc: CERD/C/GC/31/Rev.4 (2005).
  31. ‘ The aim of the provisions of article 7 of the International Covenant on Civil and Political Rights is to protect both the dignity and the physical and mental integrity of the individual. It is the duty of the State party to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity’: Human Rights Committee, General Comment 20 - Article 7 (prohibition of torture, or other cruel, inhuman or degrading treatment or punishment), para 2, in Compilation of General Recommendations adopted by Human Rights Treaty Bodies, UN Doc: HRI/GEN/1/Rev.7, 12 May 2004, 150.
  32. Human Rights Committee, General Comment 28 - Article 3 (equality of rights between men and women), para 5, in Compilation of General Recommendations adopted by Human Rights Treaty Bodies, UN Doc: HRI/GEN/1/Rev.7, 12 May 2004, 178.
  33. Human Rights Committee, General Comment 28 - Article 3 (equality of rights between men and women), para 32, in Compilation of General Recommendations adopted by Human Rights Treaty Bodies, UN Doc: HRI/GEN/1/Rev.7, 12 May 2004, 184.
  34. Human Rights Committee, General Comment 28 - Article 3 (equality of rights between men and women), para 28, in Compilation of General Recommendations adopted by Human Rights Treaty Bodies, UN Doc: HRI/GEN/1/Rev.7, 12 May 2004, 183.
  35. CEDAW does not explicitly refer to violence. However, in 1992 the Committee on the Elimination of Discrimination against Women confirmed that violence is a form of discrimination against women to which CEDAW applies: Committee on the Elimination of Discrimination Against Women, General Recommendation 19 – Violence against Women in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, UN Doc: HRI/GEN/1/Rev.7, 12 May 2004, 246. In 1994, the United Nations Declaration on the Elimination of Violence Against Women recognised that domestic violence is central to women's subordination in society.
  36. Article 5 of the CEDAW.
  37. Committee on the Elimination of Discrimination Against Women , General Comment 19 – Violence Against Women, para 11, in Compilation of General Recommendations adopted by Human Rights Treaty Bodies, UN Doc: HRI/GEN/1/Rev.7, 12 May 2004, 248.
  38. Commentators have also emphasised the importance of ensuring that the concerns of Indigenous women are heard in considering what customary practices are accepted and sanctioned within their communities. See, for example, Megan Davis and Hannah McGlade, ‘International Human Rights Law and the Recognition of Aboriginal Customary Law’, Background Paper no. 10, Law Reform Commission of Western Australia March 2005, 70; Catherine Wohlan ‘Aboriginal Women’s interests in Customary Law Recognition’, Background Paper No.13, Law Reform Commission of Western Australia April 2005, 47; Northern Territory Law Reform Commission, Report on Aboriginal Customary Law, (2003), 22, [6.16]; Submission by the Sex Discrimination Commissioner of the Human Rights and Equal Opportunity Commission to the Northern Territory Law Reform Committee Inquiry into Aboriginal Customary Law in the Northern Territory (May 2003) (Section 4: Defining Aboriginal Customary Law to include women).
  39. Article 30 of the CRC.
  40. Article 34 of the CRC.
  41. Article 36 of the CRC.
  42. (1987-1988) 164 CLR 465, 476 (Mason CJ, Brennan, Dawson, Toohey JJ).
  43. Honourable Justice Dean Mildren RFD, Supreme Court of the Northern Territory, ‘Aboriginal Sentencing’, paper presented in proceedings at the  Seventh Colloquium of the Judicial Conference of Australian Inc, Darwin, 30 May-1 June 2003, page 6.
  44. Ibid.
  45. See, for example, Hales v Jamilmira [2003] NTCA 9; Mangukala (Lazarus) (unreported NTSC, Forster J, No. 313 of 1974, 18 April 1975).
  46. Wurramurra (1999) 105 A Crim R 512, 520 (Mildren, Thomas and Riley JJ). See also Najpurki v Luker (1993) 117 FLR 148, 152 (Martin CJ); and Yougie (1987) 33 A Crim R 301.
  47. Ashley v Materna [1997] NTSC 101, [5] (Bailey J).
  48. S v Mvamvu (350/2003) [2004] ZASCA 90.
  49. Ibid, [16].
  50. Ibid, [18].

Last updated 3 November 2005