Ms CARNEY - 2006-06-13
Like your Attorney-General, you have said that customary law in sentencing can be used as an aggravating factor. This has apparently only occurred twice. Although I have previously asked the Attorney-General to advise if it has happened more than that, he has refused to do so. Customary law in all its guises is used regularly in the courts of the Northern Territory, and your own Labor Party President, Warren Mundine, has called for it to be removed. Why does a person’s race or culture mean that they get different treatment under the law? Do you favour the rights of violent Aboriginal men over those of Aboriginal women and children?
ANSWER
Mr Acting Speaker, the issue of customary law is one that has been raised in the current debate by the federal Indigenous Affairs minister, Mal Brough. I do not believe it was properly understood on the national level. It was raised in the context that, somehow or other, it could be used as a defence. Three years ago, we very clearly removed the last aspect of customary law as a defence in our jurisdiction. I will not be coy about the fact that there was a lot of anger directed towards me and this government in our community, for doing that.
Very properly, we made the decision, as someone who is a lawyer should understand, about what is taken into account in sentencing. That is very different from a defence; this is the sentencing. There are a range of things that are taken into account in our sentencing, and have been for a long time. We said that customary law was one of those aspects, and it should be properly tested as customary law. That is the first time and compares starkly with what the CLP did in government. It could either be a mitigating or an aggravating factor. That is a very logical and fair aspect of how to use customary law - as you use other things such as culture, a person’s socioeconomic circumstances; many different factors taken into account.
As the debate heats up over customary law, let us focus on where customary law is having an impact and if it is somehow distorting sentences as we might have seen in the past. I again refer the Opposition Leader to our Chief Justice, Brian Martin, and what he said about how customary law does impact on sentencing. He said very small.
While I am on my feet, I pay tribute to our Chief Justice. There has not been a Chief Justice in Australian history who has said, publicly, when interviewed in various aspects of the media, that he made a mistake. I say: ‘Good on you, Brian Martin’. That took a lot of guts. He is demonstrating from our Supreme Court, that the community view has been very clearly reflected in our Supreme Court. It is reflected in our laws and it is now being clearly reflected by our judges. The stand that has been taken by our Chief Justice is one that we should commend. Justices around the country should take a look at what Brian Martin has done, and also look at the very clear line he has made about punishments and the very small impact that he has said that customary law does have as a factor in any sentencing across the Territory.
ANSWER
Mr Acting Speaker, the issue of customary law is one that has been raised in the current debate by the federal Indigenous Affairs minister, Mal Brough. I do not believe it was properly understood on the national level. It was raised in the context that, somehow or other, it could be used as a defence. Three years ago, we very clearly removed the last aspect of customary law as a defence in our jurisdiction. I will not be coy about the fact that there was a lot of anger directed towards me and this government in our community, for doing that.
Very properly, we made the decision, as someone who is a lawyer should understand, about what is taken into account in sentencing. That is very different from a defence; this is the sentencing. There are a range of things that are taken into account in our sentencing, and have been for a long time. We said that customary law was one of those aspects, and it should be properly tested as customary law. That is the first time and compares starkly with what the CLP did in government. It could either be a mitigating or an aggravating factor. That is a very logical and fair aspect of how to use customary law - as you use other things such as culture, a person’s socioeconomic circumstances; many different factors taken into account.
As the debate heats up over customary law, let us focus on where customary law is having an impact and if it is somehow distorting sentences as we might have seen in the past. I again refer the Opposition Leader to our Chief Justice, Brian Martin, and what he said about how customary law does impact on sentencing. He said very small.
While I am on my feet, I pay tribute to our Chief Justice. There has not been a Chief Justice in Australian history who has said, publicly, when interviewed in various aspects of the media, that he made a mistake. I say: ‘Good on you, Brian Martin’. That took a lot of guts. He is demonstrating from our Supreme Court, that the community view has been very clearly reflected in our Supreme Court. It is reflected in our laws and it is now being clearly reflected by our judges. The stand that has been taken by our Chief Justice is one that we should commend. Justices around the country should take a look at what Brian Martin has done, and also look at the very clear line he has made about punishments and the very small impact that he has said that customary law does have as a factor in any sentencing across the Territory.
Last updated: 09 Aug 2016