Mr ELFERINK - 1997-12-03
My question relates to a report today of a Lajamanu man who is in Katherine Hospital recovering from injuries inflicted during a traditional tribal punishment. The man recently received a 4-year suspended sentence for the manslaughter of his nephew. Did the Supreme Court take into account the likelihood that tribal punishment would be imposed? What is the government’s view of this form of punishment?
ANSWER
Madam Speaker, the member for MacDonnell has a particular interest in this matter because he represents a constituency with a large number of Aboriginal Territorians. The issue of customary punishment is a live one, more so in the Northern Territory, northern Queensland and the north-west of Western Australia than elsewhere in Australia. While we have heard many academic opinions about whether it should be approved and encouraged or opposed, we deal with it in real terms in the Territory. It is a great challenge for the courts, in exercising their sentencing discretion, to determine whether they can take such punishment into account.
I have sought a briefing from the Attorney-General’s Department and I would be happy to make that available to the shadow attorney-general. This is an important issue and one that will be raised, I expect, in the context of the constitutional convention debate and the future constitution of the Territory. Is there a place for this in our legal system? Members will be aware that the Sentencing Act does not deal specifically with customary law, but does provide, inter alia, that one of the essential purposes of sentencing is to punish the offender to an extent or in a way that is just in all the circumstances. Whether in the Territory or elsewhere, courts always take into account all the circumstances of the offence, including the effects on the offender. For example, in a culpable driving case, where the person killed is the offender’s fiance, spouse, partner or whatever, the offender suffers from his or her own criminality.
I do not wish to bore members with this issue, but it is important that it is put on the public record because the way it has been recorded is not quite correct. It is essential that Territorians understand. The leading case in the Territory is The Crown v Minor, a 1992 decision of the full bench. The head note has this to say:
Payback punishment, either past or prospective, is a relevant sentencing consideration. Membership of an ethnic or other
group is a material fact in sentencing. It is proper to have regard to the interests of the wider community, as well as the
particular community which is most affected by a particular sentence. Further, a person should not be punished twice
for the same offence.
What has occurred in this case, according to the briefings I have received, is that the sentence has not been suspended in place of the spearing. It is important to understand that distinction. It is not a case of trading off tribal punishment in exchange for
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a penalty that the offender may be given under white man’s law. I want to reiterate the view of my government that we do not accept that there should be a trade-off, that it can be either this or that. I do not know the view of members opposite. I expect that there is probably a divergence of views on this issue. However, if we start to go down the pathway of saying that an accused Aboriginal can opt to be speared or beaten with a nulla nulla rather than face a prison sentence, while another Territorian cannot exercise other options, we are developing 2 sets of laws for the same people. In my view, and in the view of my colleagues, that would be a retrograde step.
The former Attorney-General, Hon Denis Burke, spoke out on this issue in the context of elders exercising a role in the administration of community service orders. That would apply equally in the context of some of the other sentencing discretions that could be exercised by a court. However, he expressed the views of the government at the time, that corporal punishment - spearings or beatings - were not activities that would be condoned by the government. Nor, indeed, are they condoned by the courts as a substitute penalty. I hope that helps to clarify the facts surrounding the case of The Crown v Steven Barnes and that Territorians listening to this broadcast now understand clearly that the spearing was not in substitution of any sentence that the man would have received in any event.
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ANSWER
Madam Speaker, the member for MacDonnell has a particular interest in this matter because he represents a constituency with a large number of Aboriginal Territorians. The issue of customary punishment is a live one, more so in the Northern Territory, northern Queensland and the north-west of Western Australia than elsewhere in Australia. While we have heard many academic opinions about whether it should be approved and encouraged or opposed, we deal with it in real terms in the Territory. It is a great challenge for the courts, in exercising their sentencing discretion, to determine whether they can take such punishment into account.
I have sought a briefing from the Attorney-General’s Department and I would be happy to make that available to the shadow attorney-general. This is an important issue and one that will be raised, I expect, in the context of the constitutional convention debate and the future constitution of the Territory. Is there a place for this in our legal system? Members will be aware that the Sentencing Act does not deal specifically with customary law, but does provide, inter alia, that one of the essential purposes of sentencing is to punish the offender to an extent or in a way that is just in all the circumstances. Whether in the Territory or elsewhere, courts always take into account all the circumstances of the offence, including the effects on the offender. For example, in a culpable driving case, where the person killed is the offender’s fiance, spouse, partner or whatever, the offender suffers from his or her own criminality.
I do not wish to bore members with this issue, but it is important that it is put on the public record because the way it has been recorded is not quite correct. It is essential that Territorians understand. The leading case in the Territory is The Crown v Minor, a 1992 decision of the full bench. The head note has this to say:
Payback punishment, either past or prospective, is a relevant sentencing consideration. Membership of an ethnic or other
group is a material fact in sentencing. It is proper to have regard to the interests of the wider community, as well as the
particular community which is most affected by a particular sentence. Further, a person should not be punished twice
for the same offence.
What has occurred in this case, according to the briefings I have received, is that the sentence has not been suspended in place of the spearing. It is important to understand that distinction. It is not a case of trading off tribal punishment in exchange for
Page 62
a penalty that the offender may be given under white man’s law. I want to reiterate the view of my government that we do not accept that there should be a trade-off, that it can be either this or that. I do not know the view of members opposite. I expect that there is probably a divergence of views on this issue. However, if we start to go down the pathway of saying that an accused Aboriginal can opt to be speared or beaten with a nulla nulla rather than face a prison sentence, while another Territorian cannot exercise other options, we are developing 2 sets of laws for the same people. In my view, and in the view of my colleagues, that would be a retrograde step.
The former Attorney-General, Hon Denis Burke, spoke out on this issue in the context of elders exercising a role in the administration of community service orders. That would apply equally in the context of some of the other sentencing discretions that could be exercised by a court. However, he expressed the views of the government at the time, that corporal punishment - spearings or beatings - were not activities that would be condoned by the government. Nor, indeed, are they condoned by the courts as a substitute penalty. I hope that helps to clarify the facts surrounding the case of The Crown v Steven Barnes and that Territorians listening to this broadcast now understand clearly that the spearing was not in substitution of any sentence that the man would have received in any event.
Page 63
Last updated: 09 Aug 2016