Small Acts of Assimilation with Big Consequences
When offenders appear before the court, the court is processing the inevitable consequences of systemic neglect. This is not to say that those who commit those crimes can use their impoverished background as an excuse for the harm they cause to other and it is certainly not to say that those who commit serious offences should not receive harsh punishments.
Despite the advice of community and experts who told them it is not a good idea, in November last year the senate passed legislation to amend the sentencing and bail provisions of the federal Crimes Act. The changes will stop judges from taking customary law matters into account when sentencing Aboriginal offenders. The amendment specifically states “a court cannot take into account customary law or cultural practice to render criminal behaviour less serious but could consider these factors if it rendered criminal behaviour more serious.”
The reform has come about as a result of the federal government’s grandstanding about the levels of violence in Aboriginal communities. In-depth studies by Indigenous people such as Boni Robertson and Judy Atkinson have shown that the cause of dysfunction within Indigenous communities can be traced back to a failure to provide adequate services, a failure to invest in infrastructure and a failure to invest in human capital. They show that, over decades, this neglect causes the social fabric of families and communities to unravel and this gives rise to the environment in which anti-social behaviour becomes rife.
The criminal justice system deals with the end result of this neglect and breakdown of the social fabric. When offenders appear before the court, the court is processing the inevitable consequences of systemic neglect. This is not to say that those who commit those crimes can use their impoverished background as an excuse for the harm they cause to other and it is certainly not to say that those who commit serious offences should not receive harsh punishments.
But what we can infer is that to really deal with the issue of violence in Aboriginal communities, we need to address what we understand to be the root causes that create offenders rather than simply focus on the end part of the process when offenders come before the court. In fact, for all of the federal government’s posturing on how terrible the level of violence is, they have done little to address their underspending on Indigenous health, education and housing.
Senator Chris Evans, Shadow Minister for Aboriginal Affairs, has said that the change to the Crimes Act “will not protect children from abuse. It will not protect one Aboriginal woman from being bashed … this legislation seeks to perpetuate an analysis of the problem that is wrong, politically motivated and deeply harmful to Aboriginal people.”
Not only do the amendments target the wrong end of the process, the move to restrict judges from taking into account customary or cultural factors is simply bad policy. When judges or magistrates have to determine a sentence they are required to take into account a broad range of factors that are relevant when trying to determine what the appropriate punishment should be. They will consider a range of issues from the seriousness of the offence, the offenders past criminal history and any mitigating factors in coming up with the appropriate sentence. This is a difficult process and it is important that the judiciary is free to take into account all relevant factors to make sure that the punishment fits the crime. Limiting the relevant factors that can be taken into account in this process will only increase the likelihood that the sentence determined and delivered is not appropriate.
The problem in the recent past hasn’t been the inclusion of customary and cultural matters in the decision making of judges. It has, on occasion, been an issue that judges in some cases have misunderstood the nature of customary law, especially when they have accepted assertions that sexual assault or violence against women is not treated as seriously in Indigenous cultures as it is in other cultures. While many judges and magistrates understand that this is simply not true, from time to time these false assertions about Aboriginal culture are taken seriously. There is nothing in Aboriginal culture that makes abuse of women and children acceptable, occasionally judges slip into accepting the negative and false stereotypes that Aboriginal cultures are savage and brutal.
The better approach to deal with this problem of some members is to engage in programs that educate the judiciary about Aboriginal culture and the judiciary has been very active in seeking to better inform themselves about relevant Indigenous issues.
Members of the judiciary have sought to implement training programs for the judiciary where Indigenous people explain Aboriginal culture and history, arranging visits to Aboriginal communities and meetings with Aboriginal Elders. The National Judicial College of Australia and the Judicial Commissions in various states all have a focus on educating their members on Indigenous issues. And while these initiatives have often been good first steps rather than magic cures to eliminate any racism or ignorance from every person sitting on the bench, they have certainly been more focused and active attempts to deal with informing decision-makers than we see in the other arms of government, especially people elected to parliament.
These changes to the federal Crimes Act are not about trying to reduce violence in Aboriginal communities. They are about further inflicting the misguided ideologies of the federal government about Indigenous issues onto Aboriginal and Torres Strait Islander communities. Queensland Senator Joe Ludwig summed it up when he said “this bill is nothing more than a legal fig leaf to cover the inadequacies of the minister purportedly responsible for Indigenous Affairs. The legislation is in fact not worth the paper it is written on. … It is a distraction from the litany of Liberal policy failures of Minister Herron, Vanstone, Ruddock and Brough.” Democrats Senator Andrew Bartlett observed that the amendments are a perversion of law, and it introduces a reality that is racially discriminatory, where one people’s cultural background, which is automatically infused in the way the law is interpreted, has precedence [over] everybody else’s.”
The sad thing is that these changes will have no impact on reducing levels of violence and sexual assault in Indigenous communities. They leave untouched the root causes that lead to dysfunction, matters that are the responsibility of governments. And they leave us with a criminal justice system that stops judges and magistrates from taking all relevant factors into account when determining a sentence. And by tying the hands of the judiciary in this way, this legislation will increase the chances of miscarriages of justice occurring.
About Professor Larissa Behrendt
Professor Behrendt – an academic, writer and aboriginal affairs advocate - is a Eualeyai/Kamillaroi woman.
She serves as the Professor of Law and Director of Research at the Jumbunna Indigenous House of Learning at the University of Technology, Sydney.
She is a Judicial Member of the Administrative Decisions Tribunal, Equal Opportunity Division and is the Alternative Chair of the Serious Offenders Review Board.
Larissa has published on property law, indigenous rights, dispute resolution and Aboriginal women’s issues. She is a Board Member of the Museum of Contemporary Art, a Director of the Sydney Writers festival and a Director of the famed Bangarra Dance Theatre.
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