An update on the work of the Human Rights and Equal Opportunity Commission (HREOC)

Northern Territory Anti-Discrimination Commission - 31 October 2006

President John von Doussa

I would like to acknowledge the Larrakia people on whose traditional land we meet today.

I would also like to thank the Northern Territory Anti-Discrimination Commission for hosting this event at such short notice.

What I plan to do today is to talk briefly about a few of the issues which are currently on HREOC’s agenda. The first issue is HREOC’s Same-Sex Same Entitlements Inquiry.

Same Sex Inquiry

The first issue is HREOC’s Same-Sex Same Entitlements Inquiry. In April this year HREOC launched a national inquiry into the discrimination faced by same sex couples in relation to financial and work-related entitlements.

The aim of the inquiry is to effectively audit the discriminatory effects of Australian laws on gay and lesbian couples’ access to financial and work-related benefits.  

So far we have received over 360 submissions to this inquiry. Still more people have attended the public forums and hearings HREOC has held across Australia. This week the Inquiry is listening to people in Darwin and Alice Springs.

What the submissions we have received so far show is that for people in same-sex relationships this inquiry is not simply about tax and welfare payments. It is about redressing financial discrimination and respecting relationships.

For example, many submissions describe how a gay man, unlike a heterosexual man, is denied access to his partner’s superannuation benefits if his partner worked for the Commonwealth public service.
Other submissions tell us that a lesbian woman, unlike a heterosexual woman, may not have access to tax rebates for child care.

The submissions describe the financial strain that these discriminatory laws place on gay and lesbian couples. They illustrate how laws treat gay and lesbian couples as second class citizens, not deserving of the same rights as heterosexual couples. As one person put it:

The inequalities embedded in current legislation are obvious and are inexcusable.  "Understanding, tolerance and inclusion" are said to be values of the Australian community.  Current legislation tells another story.[1]

The right to non-discrimination and the right to equality before the law are fundamental principles of international human rights law.  

Customary law

Yet, sometimes the right to non-discrimination and equality before the law is misinterpreted and misunderstood. Too often, we hear the mantra that recognising cultural considerations in sentencing breaches the principle of non-discrimination and equality.

Last month, the federal Government introduced the Crimes Amendment (Bail and Sentencing) Bill 2006. This bill removes ‘cultural background’ from the list of factors a court can take into account in sentencing and prevents the courts from considering customary law and cultural practices as a mitigating factor in sentencing.

The government claimed the Bill would:

  • ensure equality before the law by removing cultural considerations from the sentencing process; and
  • help address the problem of family violence in Indigenous communities.

Both claims are seriously misconceived. The idea that removing cultural considerations from sentencing creates equality is based on the erroneous assumption that some (other) people have ‘culture’ and everyone else is ‘normal’.

The plain fact is that all Australians, regardless of their cultural background, have cultural values and may engage in cultural practices which may be relevant in the sentencing process. The common law is in tune with this reality, recognising that it is necessary to take into account relevant facts about the offender’s cultural background, in order to ensure just sentences. As the then Chief Justice Brennan said in R v Neal the same sentencing principles apply:

...irrespective of the identity of the particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group. So much is essential to the even administration of criminal justice.[2]

By expressly excluding the courts from considering ‘any form of customary law or cultural practice’ as a mitigating factor in sentencing the Bill may in fact result in discriminatory outcomes.

There are two ways in which the Bill’s prohibition on courts considering ‘any form of customary law or cultural practice’ as a mitigating factor in sentencing could be interpreted. Both possibilities present problems.

The first possibility is that Bill intends to exclude all aspects of what we might call ‘Australian cultural practices or Australian values’ that could be considered in sentencing. While excluding everyone’s cultural practice and values in one sense provide equality before the law, the Bill would undermine the court’s capacity to deliver ‘individualised justice’ or, in other words, a sentence which is just and appropriate in all the circumstances of the case.

The second possibility is the Bill only intends to target the values and practices of minority cultures, and only offenders who are members of minority cultures will be denied the right to individualised justice. If this is the case then the new laws will be a form of racial discrimination.

The government’s second claim – that the Bill will help address family violence in Indigenous communities – must also be rejected. Not only does the Bill distract from the real solutions to the problem of family violence in Indigenous communities – solutions that address poverty, housing overcrowding, substance abuse, low levels of education and unemployment – it undermines important initiatives such as circle sentencing that have engaged Indigenous communities and reduced recidivism.

While the majority of the Senate Legal and Constitutional Committee generally supported the Bill’s proposal to prevent courts from considering customary laws or cultural practices as mitigating factors in the sentencing process, the Committee acknowledged that the ‘Bill’s focus is misdirected’ and that ‘[the Bill] will do little, if anything, to achieve its stated aim [of addressing family violence in Indigenous communities]’.[3]

The Bill reflects the government’s anxiety that the law’s response to the consideration of customary law or cultural practices in sentencing may result in unduly lenient sentences that fail to reflect the gravity of the offence.

The important factor to remember is that the cultural background of the offender is only one factor in many factors that the court can consider in sentencing. What HREOC said in relation to the appeal to the Supreme Court the Queen v GJ, and what we said again in evidence to the Legal and Senate Constitutional Committee is, that any consideration that is given to cultural practices or customary law must be consistent with human rights principles.

If the government is concerned that Courts may give undue weight to cultural considerations in the sentencing process at the expense of recognising the gravity of the problems of family violence and child abuse, the best way to alleviate this concern would be to introduce a provision that states cultural practice and customary law shall not be considered in sentencing where to do so is inconsistent with universal human rights and fundamental freedoms.

Perhaps the most alarming aspect of the new Bill is that the government has indicated that it wants the states to enact interlocking legislation.[4] This would give a bad law nationwide application and fly in the face of every major inquiry into the role of cultural background and customary law in the Australian legal system, including five Australian Law Reform Commission reports.

The launch last Friday of the Western Australian Law Reform Commission report into Aboriginal Customary Laws has just added to the bank of well-evidenced research which concludes that cultural considerations – including customary law – may be relevant in the sentencing process.

Interestingly, one of the findings of the West Australian Law Reform Commission Report was that ‘many Aboriginal people in Western Australia were concerned about their lack of knowledge of Australian law and sought improved education about Australian law and the legal system’.[5] The report recommends educational initiatives to inform Aboriginal people about criminal laws and international human rights standards that may potentially conflict with Aboriginal customary laws.[6]

‘Naming and shaming’ Juvenile offenders

Unfortunately, sometimes it is the law itself which pays too little attention to international human rights principles. The Northern Territory is the only jurisdiction in Australia that allows the media to identify and publish photos of juvenile offenders. Under section 50(1) of the ambitiously titled Youth Justice Act 2005 (NT), which commenced in August 2006, a juvenile offender can be publicly identified, unless a Magistrate issues an order to restrict publication of proceedings.

While the Youth Justice Act 2005 (NT) is new, the problem of publicly identifying juvenile offenders in the Northern Territory is not. While the introduction of the Youth Justice Act would have been an ideal opportunity to remedy a longstanding problem, section 50(1) of the Youth Justice Act is almost identical to the now repealed section 23(1) of the Juvenile Justice Act (NT).

From a human rights perspective, laws which allow the press to ‘name and shame’ juvenile offenders may breach Australia’s obligations under the Convention on the Rights of the Child and the International Covenant of Civil and Political Rights. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing rules) states that ‘in principle, no information that may lead to the identification of a juvenile offender shall be published’.

In practice, the consequences of ‘naming and shaming’ juvenile offenders are often far worse than the punishment imposed by the court. Naming young offenders can jeopardise their prospects of future employment, inflict psychological damage, and lead to verbal or physical abuse. In short, ‘naming and shaming’ juvenile offenders can deal a knock-out blow to the prospect of rehabilitation.

The recent decision of the Northern Territory Court of Appeal in MCT McKinney & Ors[7] (McKinney) confirms that, in considering whether to suppress a young offender’s name, Northern Territory Courts can take into account the impact of naming the offender on his or her ‘psychological well-being and rehabilitation prospects’.

In this case, a 15 year old boy, MCT, had pleaded guilty to charges of assault and theft. The Chief Magistrate ordered the suppression of the appellant’s name with respect to the ‘serious charges of assault’, but refused to suppress the offenders name with respect to ‘four less serious charges’.

MCT, represented by the Northern Aboriginal Justice Agency, appealed against the refusal of the Chief Magistrate to suppress MCT’s identity in relation to the serious charges. In the Court of Appeal, Justice Angel held that section 23(1) of the Juvenile Justice Act (NT) does not allow for the making of orders suppressing the identity of offenders in the Juvenile Court.

MCT appealed to the full court of the Court of Appeal. In a joint judgment Martin CJ, Mildren and Thomas JJ held that the Juvenile Justice Act does allow courts to make an order suppressing the identity of offenders in juvenile offenders. Their Honours then turned their attention to the question of whether the Chief Magistrate correctly exercised his discretion not to suppress MCT’s name on the less serious charges.

The Court observed that in exercising its discretion to suppress the identity of juvenile offenders, it was important to:

weigh in the balance the fact now almost universally acknowledged by international conventions, State legislatures and experts in child psychiatry, psychology and criminology, that the publication of a child offender’s identity often serves no legitimate criminal justice objective, is usually psychologically harmful to the adolescents involved and acts negatively towards their rehabilitation.[8]

The Court emphasised that a suppression order ‘does not in any way prevent the media from publishing the details of offending and every other aspect of the offenders’.[9] In McKinney this fact was sufficient to the balance the public interest in open justice and the public interest in protecting the privacy of children.

The decision in McKinney will hopefully encourage more judges in the Northern Territory to consider whether or not they should exercise their discretion to suppress the publication of a child offender’s name. Importantly, McKinney provides a clear directive to Courts considering whether or not to issue a non-identification order to give due weight to the impact of publication on the prospects of rehabilitating the youth offender.

But the real problem is the Youth Justice Act 2005 (NT). In my view the problem is that the law has got its presumptions the wrong way around. Instead of a presumption in favour of the naming of juvenile offenders, there should be a presumption against the naming of juvenile offenders.

The negative impacts of naming juvenile offenders are well-known. Only in rare and remarkable circumstances might it be justifiable to name a juvenile offender. This is why it should be up to the prosecution – or the press – to show that, in the particular circumstances of a case, the public interest in naming an offender outweighs the public interest in protecting the privacy of the child and preserving the prospect of rehabilitation.

PT[1] HREOC, Same Sex: Same Entitlements Inquiry, Submission 288, James Duncan.

[2] R v Neal (1982) 42 ALR 609 (Brennan J)

[3] While the majority of the Committee did support the passage of the Bill, they recommended that the ‘phrase cultural background’ remain on the list of factors that a court must take into account in sentencing an offender. See Senate Committee on Legal and Constitutional Affairs, Report on Crimes Amendment (Bail and Sentencing) Bill 2006, October 2006.

[4] Council of Australia Governments (COAG) communiqué 14 July 2006. I note that in the Northern Territory the Sentencing Amendment (Cultural Practice and Customary Law) Bill 2006 proposes to insert a provision into s 5 of the Sentencing Act 1995 (NT) which states a court must not have regard to the customary law or a cultural practice of a community in sentencing. The Bill would repeal section 104A of the Sentencing Act which currently governs the receipt of information about by a court about Aboriginal Customary law before it passes a sentence on an offender.

[5] Law Reform Commission of Western Australia, Aboriginal Customary Law Final Report, October 2006.
[6] Law Reform Commission of Western Australia, Aboriginal Customary Law Final Report, October 2006, p150.

[7] MCT McKinney & Ors [2006] NTCA 10.

[8] MCT v McKinney & Ors [2006] NTCA 10, [20].

[9] MCT v McKinney & Ors [2006] NTCA 10, [30].