The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a 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.
(Brennan J: Neal v The Queen (1982) 149 CLR 305 at 326)
In 2007 the Northern Territory experienced what has been called “The Intervention”. Legislation passed in support of that process included s 91 of the Northern Territory National Emergency Response Act (Cth) which provided that a court in determining sentence “must not take into account any form of customary law or cultural practice as a reason for … lessening the seriousness of the criminal behaviour to which the offence relates”.
The effect of that provision, whether intended or unintended, has been held to be that customary law and cultural practice must not be taken into account in determining the gravity or objective seriousness of an offence (see for example R v Wunungmurra (2009) 231 FLR 180 at 182). This, of course, means that the court must sentence in a partial factual vacuum. Although the level of moral culpability of an offender may have been substantially reduced because he or she acted in accordance with, and under pressure to perform, a cultural practice, the court is barred from taking those matters into account. The effect is that the court is not entitled to consider why an offender has offended and pass an appropriate sentence. The Court is required to ignore the actual circumstances of the offending. The artificiality involved is obvious and is at odds with the views expressed by Brennan J in Neal v The Queen as a result Aboriginal offenders do not enjoy the same rights as offenders from other sections of the community.
The outcome in R v Wunungmurra becomes of more interest when we consider the advice which the Australian Government has just given to the Human Rights Council of the UN in response to criticisms of Australia under the Universal Periodic Review process. Australia has just told the UN:
Recommendation 48 (of the UPR of the HRC of the UN):
Accepted: The Australian Government considers that its current laws, policies and programs do not discriminate on the basis of race.
Obviously the Australian Government’s position when s 91 of the Northern Territory National Emergency Response Act is considered alongside Recommendation 48 (of the UPR of the HRC of the UN) is inherently contradictory.
The effect of this contradiction is threefold. Firstly and most obviously, the Australian Government has apparently fraudulently misrepresented the current status of Australia’s legal system to the rest of the world via the United Nations. This isn’t a mere peccadillo, but represents a serious affront to the respect which institutions such as the UNHRC should be afforded by member states, including Australia.
Secondly, misrepresentations such as this one, supported as they inevitably are by a docile and facile press in the world’s first Murdochracy, serve only to suppress the truth and allow Australia to spruik about other nation’s human rights records from a moral high ground that it does not deserve to hold.
Thirdly, these types of misrepresentation by the Australian Government serve to reinforce the already high level of disadvantage suffered by most Indigenous Australians in their own country. Without first acknowledging the truth there can be no dialogue. Without dialogue there can be no healing and no justice. These are issues that the world community must consider when assessing Australia’s application for a non-permanent seat on the United Nations Security Council.
Another and perhaps more immediate issue is that discriminatory practices such as these when they form part of a system of justice that purports to be ‘blind’ but obviously isn’t, cause untold hardship to the victims of this type of institutionalised racism and in part helps explain the overrepresentation of Indigenous Australians in Australia’s legal system and the high rates of recidivism from within this group.
A docile and facile media
There has always been a concern in the Australian community, as to levels of crime and how the community should deal with those who commit crimes. This is not a recent development and is something that will be with us for so long as crimes are committed. There have always been those, including shock jocks on capital city radio and former Prime Ministers trying to ‘scare’ the voting public into awarding them with another undeserved term in office, who do not think beyond the response of locking up those who commit crimes and throwing away the key.
Those who adopt this superficial “warehousing” approach to the problem find encouragement in the manner in which crime and sentencing for crime is reported by Australia’s docile and facile popular media, with its superficial emphasis on the sensational and its concurrent failure to fully explain the reasons for decisions made by individual judges and magistrates. This type of superficial reporting leads to perceptions that the courts are “soft on crime” and then to the phenomenon we now know as “law and order auctions” in the lead up to any election. Many politicians, at least publicly, feel the need to be perceived as being “tough on crime” and promise ever more punitive responses.
An interesting facet of this type of response by Australian politicians to scaremongering within our docile and facile popular media is that it reeks of a lack of moral character on the part of those very same politicians who engage in “law and order auctions” in the lead up to an election. How can someone devoid of moral character claim to be a leader? This is one of the reasons why Australia struggles to raise above the level mediocrity in education, policy formulation and world outlook and most importantly of all – HUMANITY.
According to Ken “SKC” Ogbonnia:
“Effective leadership is the ability to successfully integrate and maximize available resources within the internal and external environment for the attainment of organizational or societal goals.”
If we take the ‘Ogbonnia formula’ as a starting point for an analysis of Australia’s political and moral leaders, we as a nation come up wanting and wanting rather badly.
Our wanting in terms of political and moral leaders stems from the fact that policy development in Australia, at least from the period of the ‘wasted years’ of Howard’s Prime Ministership policy development, has become the almost exclusive domain of Australia’s docile and facile popular media with its emphasis on the superficial and the scandalous. It is from this position that Australia allows the grossest of injustice to be meted out to the most venerable from within its own community; those of us who dare to call ourselves Aboriginal or Torres Strait Islanders, or both.
Long live the Australian Commonwealth. Long live Australian moral bankruptcy.
Further update (6/10/2011): the link to on of Shane Dowling’s posts is broken and teh post appears to have been taken down. I wonder if the AFP have used bully-boy tactics in an attempt to intimidate those speaking out against them?