PROPOSALS TO prohibit courts from considering the cultural background of offenders in sentencing will restrict the courts and leave Indigenous Australians to live under one law while white Australians live under another, the peak body representing the Australian legal profession has argued.

In a written submission to the Council of Australian Governments (COAG), the Law Council of Australia urged ministers to abandon moves to prevent cultural background evidence from being used in sentencing. COAG was meeting as Lawyers Weekly went to press.

The Law Council focused on Indigenous Australians in its submission, claiming that while the proposed changes would affect people of all cultures, it is Indigenous violence that has been the catalyst for the Commonwealth Government’s proposals.

“Our written submission to COAG ministers highlights the lack of informed discussion that has occurred recently with respect to Aboriginal customary law and cultural issues. Public statistics do not support claims that Indigenous offenders have been treated more leniently than other offenders,” said Law Council president Tim Bugg.

While supporting the Commonwealth Government and State and Territory governments in their addressing violence and sexual abuse within Indigenous communities, it said it believes the proposals to dismiss cultural background as a relevant factor in sentencing was “misconceived”. The proposals will “unnecessarily restrict the discretion of the court to consider matters that may be relevant, either to mitigate or aggravate, the seriousness of an offence,” the Law Council claimed.

But the Federal Government claims there is no room for negotiation. Its offer of $130 million to help combat violence in Indigenous communities depends on the States agreeing to remove any consideration of customary law in the sentencing of serious offenders.

The Law Council criticised the Government’s methodology. “Linking federal funding for better services in Aboriginal communities to agreement by States to scrap customary law is pure politics not principled policy and it threatens to weaken the administration of justice,” said Bugg.

According to Victoria’s Aboriginal Affairs Minister, Gavin Jennings, the Federal Government has failed to justify its proposals. Speaking on ABC Radio, Jennings asked for the whereabouts of case studies, evidence and proof that customary law has been used in “any inappropriate fashion to get somebody off from an assault or a sexual abuse case”.

According to the Law Council, the central argument being put forward by the Government is that there should be “one law for all Australians”. The Federal Minister for Indigenous Affairs has argued that no-one should be entitled to be treated differently depending on their culture, adding that “cultural law is being manipulated by the courts” to reduce the sentences of serious offenders.

But this is an old argument, claims the Law Council. “The possibility that offenders of different cultural backgrounds may argue for leniency on the basis of their customs or traditions was considered in 1992 by the [Australian Law Reform Commission],” the submission reads. It adds that it was concluded at this time that the courts would only give weight to cultural factors that were appropriate in the circumstances.

The Law Council argues that rather than resulting in a ‘one law for all’, measures that limit the factors courts may consider in sentencing will result in the law “applying one way for white, Anglo-Saxon Australians, and in another way for Indigenous Australians and Australians of multicultural descent”.

Writing in the National Indigenous Times last week, Jennifer Clarke, former Aboriginal land claims solicitor, now of the College of Law at the Australian National University, said the Government’s plan was “poorly conceived”.

“The criminal justice system fails many victims, mainly by ignoring them. Courts can make bad sentencing decisions — that’s why we have appeal courts. They can be poorly informed about how customary law should influence a sentence — for example, when the prosecution doesn’t collect proper evidence of general Aboriginal opinion and all that the judge is left with is defence advocacy.

“But legislatures which lay down arbitrary rules for dealing with all defendants are yet another step removed from the crime, the offender, the victim and their social circumstances.”