Northern Territory Second Reading Speeches

[Index] [Search] [Bill] [Help]

CRIMINAL CODE AMENDMENT BILL (NO 2) 2003

(This an uncorrected proof of the daily report. It is made available under the condition that it is recognised as such.)

Ms CARNEY (Araluen): Madam Speaker, I move that the bills be now read a second time. By way of introduction, there are a number of preliminary matters that should be addressed before I go to the details of these.

Members will be aware that the member for Braitling bought before the House some time ago a bill that is apparently aimed at overcoming some of the difficulties posed by the Jackie Pascoe case. Although I support the well meaning intention of that bill, it does not, in my view, sufficiently advance the interests of Aboriginal women and girls who are the victims of violence, which is endemic in their communities, for reasons that I will outline later.
I can advise members that I have spoken to the member for Braitling about these bills and have her general support for so doing. The effect of this is that we now have three bills before this House which, should I hope, pressure government to use legislative initiatives as part of a whole package to assist in the elimination of violence against Aboriginal women and children and, importantly, to deal with the perpetrators of violence. I note that it has been 10 months since the Pascoe case furthered a Territory, and indeed national, debate about customary law and there are some practical legislative measures that could have been implemented or, at very least, circulated by government.

It is noteworthy that these bills come only two weeks after the National Summit convened by the Prime Minister to tackle indigenous family violence, so these bills are timely. I might say also that there is a demonstrated national commitment to addressing or tackling these issues, which is to be commended.

I should also note that the government last year commenced an inquiry into customary law, but it is important for us all to realise that the inquiry deals with the broad application of customary law and is not, unlike these bills now before us, limited to dealing with the issue of violence in communities and how the criminal law can be improved to assist victims of violence. I am, I should say, nevertheless heartened by the indication from government that any recommendations of the inquiry must be consistent with universally recognised human rights and fundamental freedoms. And in particular, the Criminal Code thereby precluding formal acceptance of any form of traditional law that uses violence or cohesion. It is heartening, because the changes I suggest are consistent with fundamental human rights. In fact, the rights of victims of violence are very much enhanced by these amendments.

The bills are designed to overcome the obvious shortcomings of the criminal law, in relation to customary law, generally, and in particular how customary law assists violent men and penalises victims who are, for the most part, Aboriginal women and girls. I want to make it clear that these bills to not seek to abolish customary law. In fact, it was the CLP which introduced much legislation over the years which incorporated customary law into the Territory’s legal system. Such legislation includes the Evidence Act, the Community Welfare Act, the Adoption of Children Act, the Crimes (Victims Assistance) Act, the Administration of Probate Act, and the Status of Children Act, to name a few.

These bills that I now introduce eliminate customary law from being considered in the criminal jurisdiction only, and are necessary, having regard to the outrageously high levels of violence being experienced in Aboriginal communities around the Territory. The central point of these bills is to ensure that Aboriginal women and girls are accorded the same rights and protections that accorded to non-Aboriginal women and girls. With that central objective, it is hard to imagine that the bills would not be supported, if not in substance, then perhaps at least in principle.

No doubt, Madam Speaker, some will say that any legislation, in any way that limits customary law, even in the criminal jurisdiction, is a backward step, and an erosion of the rights of indigenous people. I cannot accept such an argument in light of the unacceptably high levels of violence experienced, not only in indigenous communities, but urban areas. The same people, no doubt, will ask whether these bills limit the rights of some indigenous people, and they probably do. However, those people who’s rights may be limited, will be the offenders, who have committed acts of sexual and physical violence, predominantly on women and children, who come before the courts and I, and I would suggest most other Territorians, have no problem with that whatsoever.

I am sure the Anti-Discrimination Commissioner will say that it is discriminatory, and I note that he has already given advice to that effect to the member for Braitling in respect of her bill. I say to that, change the Anti-Discrimination Act so that it is no longer discriminatory. We simply cannot keep finding excuses for not dealing with the problem. If it is too hard, I say, try harder, and find ways of overcoming the obstacles.

There is a bottom line here, and that is that there is nothing culturally appropriate about physical and sexual violence. There is a time to draw a line in the sand, and to be uncompromising, some would say militant, about violence, and I am one of them. Indeed, I think I can argue with some confidence that this now underpins the national agenda on this issue.

I trust that I will obtain the full support of all members for what may be described as some fairly radical bills, but which can equally and rightly be regarded as creating practical ways to improve the criminal law in an attempt to assist victims of male violence. There are two bills, the Sentencing Act amendment and the amendment to the Criminal Code. The Sentencing Act amendment I will now turn to in some detail.

I should say, however, that the member for Braitling’s bill that was introduced some time ago, only deals with sentencing, and only applies to sexual crimes against Aboriginal women and children. Obviously, there are other crimes of violence that women in communities face, particularly physical violence. The member for Braitling’s bill does not deal with those other crimes of violence, which is why I propose that the Sentencing Act be amended to include a new section, section 5A, which says:

That the court shall not have regard to any aspect of Aboriginal customary law in sentencing.

And there are compelling reasons why this should be the case. It is overwhelmingly the case that Aboriginal women and children are the victims of violence, for the most part, in Aboriginal communities. The figures bear this out, as does sitting in any court in the Northern Territory, on any day of the week. One might therefore expect, in light of the evidence, that the legal system might afford these victims some form of protection, and that we, as legislators, might assist them in that regard. Indeed, a system exists whereby Aboriginal women and children, who are the victims of violence, become victimised, even more by the legal system, and certainly marginalised, and not truly assisted by it. And let there be no mistake, Aboriginal customary law, in criminal law proceedings, does not assist them, rather it disadvantages them.

Submissions are often put about customary law with little or no evidence. Magistrates and judges have developed an overly respectful regard for submissions that contain references to so-called traditional law. Some would say that one example of this can be found in the remarks of Justice Gallop in the Pascoe case. However, there are plenty more like that. The fact is that violent offenders, through their lawyers, are putting to judges and magistrates submissions not too far removed from: ‘It was culturally appropriate for me to bash my wife’, ‘It was culturally appropriate for me to have sexual intercourse with a girl under 16’, and ‘It was culturally appropriate for me to bash and rape that woman’. There is nothing culturally appropriate about crimes of violence and it behoves us all to do what we can to stop it. If we cannot actually stop the violence, we can at least do our best to prevent men hiding behind the veil of customary law. Offenders who invoke customary law do so for their own benefit. Indeed, a feminist analysis would be that it works to assist men and disadvantage women. That certainly appears to be the case when you look at the high level of violence on communities, and those who are the perpetrators and those who are the victims. Customary law is used as a shield to further mitigate the sentencing disposition which follows a finding of guilt or a plea of guilty.

Furthermore, the concept of payback is often relied upon as a mitigating factor by defence lawyers and is taken into account by judges and magistrates when sentencing. There is another bill before the House about payback in bail cases. This amendment is not about payback per se, but it is important for members to understand that submissions about an offender having received payback will no longer be able to put as a result of this amendment. This is worth noting because the fact is that, regularly, courts do take into account evidence or, in some cases merely submissions from the bar table, that the offender has been punished in accordance with traditional or customary law and that, as a consequence, the punishment handed out by the court should be reduced. In other words, if the offender has been punished Aboriginal way, then it attracts some sort of reduction to the sentence that is to be imposed by the court.

If we accept, as I am sure we do, that violence is endemic in Aboriginal communities, then it is appropriate that other forms of violence, under the name or guise of payback, should not be tolerated or in any way sanctioned by the courts. While a broader debate on payback will no doubt occur when the bill I have just alluded to is here before us, it is germane to this bill because of the way it advantages perpetrators of violence. There can be no doubt that there is something of a revolving door that exists for many violent offenders which, crudely put, goes something like this: man beats up woman; man goes to court; lawyer says he has already been punished Aboriginal way; judge says that is taken into account and the sentence is reduced; man goes back to community sooner than he should, back to beat up the woman again. It is simplistic but frankly, in many cases, it is not too far off representing what happens. Customary law, a part of which is payback, often shields an offender from stronger sentences. It is an unfair and unconscionable mechanism by which their criminality is reduced or excused, resulting in reduced sentences or, in some cases, no periods of imprisonment at all.

In light of the high levels of sexual and physical violence that exists, we must all ask whether we are prepared to sit back and accept this situation. For my part, I am not, and to the extent that I can do anything, I introduce these bills. No doubt the question will be asked: what will this bill achieve; that is, the Sentencing Act amendment. First, it is worth noting that many argue that women and children will be protected if customary law is excluded from the courts deliberations because, if it is not taken into account, violent men are more likely to be gaoled for longer periods. In turn, in a practical sense, it means that the victims have a longer period of respite, or it may give them time to leave their communities or otherwise get away from the offenders, something which is notoriously difficult to do. Second, it will send a message to violent men that they can no longer hide behind the veil of customary law. Third, it will send a message to Aboriginal victims of violence that those who offend against them will be treated the same way as those who offend against non-indigenous victims. Fourth, it will affirm the Territory’s commitment to honestly addressing Aboriginal violence which will be a welcome contribution to the national agenda.

We must do what we can to ensure that offenders are not afforded an unfair and unconscionable mechanism by which their criminality is reduced or excused. The removal of customary law from the courts deliberations is something constructive that we, as legislators, can do. The solution I propose is that a new section, section 5(a), should be incorporated into the Sentencing Act that says the court shall not have regard to customary law in sentencing an offender, and I commend that to members.

In relation to the Criminal Code, this amendment is necessary because the Sentencing Act only relates to offenders who are found guilty or who plead guilty. Put simply, or in layman’s terms, it comes into play at the final stage of a criminal proceeding. It is important therefore to look at what can be done in the course of the determination of guilt. To this end, I am able to demonstrate how it is that customary law sanctions acts of sexual intercourse or gross indecency on girls under the age of 16.

Members will recall in the Pascoe Case, for instance, which I notice is on appeal to the High Court, the offender was found guilty of unlawful sexual intercourse with a female under 16 years of age contrary to section 129(1)(a) of the Criminal Code. That section refers to unlawful sexual intercourse and acts of gross indecency with a female who is under the age of 16 years. For the purpose of this debate I will use the Pascoe Case as an example but there are plenty more cases around just like it.

The difficulty I want to overcome by this bill is best illustrated by a remark made by Mr Justice Riley in the Court of Appeal at pages 42 and 43 of the judgement. He says, and I quote

A purpose of the provision [that is section 129] is to protect young females from sexual exploitation. A female below the age of 16 years is to be treated as being unable to consent to sexual intercourse. However, for sexual intercourse with a female under that age to be unlawful the parties to that act must not be husband and wife.

For the sake of completeness I should mention that Pascoe did not actually assert that the girl was his wife, merely his promised wife, but for the purposes of this debate Mr Justice Riley’s remarks succinctly outline the nature of the problem. Put simply what it means is that it is not unlawful if the man and a female under 16 years of age are married Aboriginal way. In other words, if they are married it is not unlawful for a man to have sexual intercourse with or commit an act of gross indecency upon a girl under 16 and only Aboriginal Territorians can marry under the age of 16 years.

I turn now to the definitions section of Division 1 of the Criminal Code and it says and I quote.

Husband and wife and like terms include in the case of Aboriginals persons living in a husband and wife relationship according to tribal custom.

The effect of the definition, when combined with the definition of ‘unlawful’ set out in section 126 of the Code is that traditional marriage makes certain actions lawful. Hence, customary law provides a defence to Aboriginal men having sex with girls under the age of 16 years on the basis that they are husband and wife. Or put another way, if the girl under 16 years is a man’s wife then a man cannot, I repeat, cannot be found guilty of an offence under section 129, that is, sexual intercourse or an act of gross indecency.

This assumes that girls under the age of 16 can give their consent to fundamental matters. One is sexual intercourse and the second is marriage. I do not believe that that is acceptable. The amendment I propose to remove this problem is a rewrite of the definition of husband and wife and it is as follows:

Husband and wife and like terms include persons living in a husband and wife relationship except if the wife has not attained the age of 16 years.

That removes reliance on things like tribal custom in support of Aboriginal marriages. It also protects exploitation of girls under 16 and I might add not just Aboriginal girls, all girls. It is therefore, I suggest, a necessary and compelling amendment.

While I have referred to section 129 of the Criminal Code it is important to note that the proposed amendment will mean that in the following sections any sexual act against a 16 year old will be unlawful and the person may be charged with the following crimes without the defence of traditional marriage being available: section 131 – attempts to procure young persons or mentally ill or handicapped persons; section 131A – unlawful sexual relationships with a child; section 132 – indecent dealing with a child under the age of 16; and section 130 – that is sexual intercourse or gross indecency by a provider of services to mentally ill or handicapped person.

As I said, this is a compelling amendment. I would suggest that there would not be one person in this Chamber who would have any difficulty whatsoever with the proposition that it should be unlawful for anyone to have sex with a child under the age of 16 years. I should say, for the sake of being additionally thorough, and for the benefit of those at the Department of Justice who will need to advise the Attorney-General on this bill, that I did consider the consequences of the bill on sections 13, 42 and 291, however any consequences that do flow are not significant and certainly not insurmountable and, most importantly, those sections do not deal with crimes of violence.

Children cannot consent to sexual intercourse, yet under customary law their consent is taken to have been given by virtue of marriage. In many communities across the Territory, girls are promised to men and they are married to them, Aboriginal way. When men have sex with them or commit acts of gross indecency upon them, a ready-made defence is available to them. This is unacceptable and, I would suggest, profoundly racist because similar provisions do not exist for non-Aboriginal girls.

I suggest that we as a community do actually accept a number of fundamental propositions, and they are: that there is no sliding scale with child abuse; children cannot give their consent to sexual intercourse or acts of gross indecency; that physical and sexual violence against Aboriginal women and children is endemic; and that all children, Aboriginal and non-Aboriginal, must be protected against acts of physical and sexual violence; and that children cannot give their consent to be married. In conclusion, the two amendments I propose are, on any analysis, compelling.

In summary, the first is to the Sentencing Act, which precludes courts taking customary law into account when sentencing. It covers all crimes of violence, not just sexual offences, and it will overcome the practical and intellectual difficulties that arise from punishing those who commit crimes of violence with other violence. By that, I am referring to payback.

It will prevent courts offsetting punishment for crimes of violence, which are predominantly against women and children, with punishment inflicted on the offender by others. Most importantly, it will afford Aboriginal women and children the same rights and protection afforded to non-Aboriginal women and children.

The second amendment proposed, namely, the amendment to the Criminal Code, will ensure that offenders who have sexual intercourse with or who commit acts of gross indecency upon Aboriginal girls under the age of 16 years cannot rely upon the veil of marriage as a defence, which is currently afforded to them. This will mean, therefore, that Aboriginal girls will have the same protection as non-Aboriginal girls under our legal system.

Finally, it seems to me that both political parties in the Territory say to each other on the issue of Aboriginal violence against women and children, and, indeed, all Aboriginal violence, that neither party has done or is doing enough. I suppose that is the nature of politics. However, like everyone who lives in the Northern Territory, both parties are desperate to see the reduction of violence. Both parties have and will continue to expend huge amounts of money and other resources trying to address this problem. While money and programs and other resources are directed at this, we should not shy away from legislative change as part of an overall package. Practical measures, such as legislative change, can and should be undertaken to assist victims of violence. It is for that reason that the amendments and my comments do transcend politics.

This is about doing what is right, proper and necessary to protect Aboriginal victims of violence, predominantly women and children. Accordingly, I trust that these amendments will have the support of government and that they are accepted in the spirit in which they are intended, or at least seriously considered. For those reasons, Madam Speaker, I commend the bill to honourable members.

Debate adjourned.

[Index] [Search] [Bill] [Help]