NAAJA backs judge’s support of customary law


 Originally published by Tracker Magazine. 

NORTHERN TERRITORY: A Top End Aboriginal justice agency has backed the concerns raised by a Northern Territory judge that the NT intervention laws which forbid courts from taking customary law into account in bail or sentencing decisions is a “backwards step”.

In May, NT Chief Justice Trevor Riley expressed concern over section 91 of the NT National Emergency Response Act (Cth), saying it meant Aboriginal people were not given the same rights as other members of society.

“The effect of the 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,” Justice Riley said.

“This, of course, means that the court must sentence in partial factual vacuum… Aboriginal offenders do not enjoy the same rights as offenders from other sections of the community. It seems to me this is a backwards step.”

The North Australian Aboriginal Justice Agency (NAAJA) this month backed Justice Riley’s stance, stating that the removal of customary law in sentencing was “discriminatory provisions that have no place in our justice system”.

NAAJA’s Principal Legal Officer Jonathon Hunyor told Tracker that there needed to be more education around customary law and how it integrates with the courts.

“If the punishment is going to fit the crime, courts need to be able to take into account all of the circumstances of an offence and an offender – there is simply no basis for excluding customary law or cultural practices from the things that a court should consider. It produces unfairness and goes against basic sentencing principles,” Mr Hunyor told Tracker.

Mr Hunyor suggested governments should learn from customary law, stating it was a recommendation of the Little Children Are Sacred report, which was used as justification for the NT intervention.

“Instead of trashing customary law, governments should be looking at ways that it can be harnessed to build stronger and safer communities,” Mr Hunyor said.

“NAAJA’s view is that customary law is a potentially valuable means of empowering Aboriginal people to take responsibility for offending that occurs in their communities and to work side-by-side with the mainstream criminal justice system.”

Controversy over the use of customary law in sentencing was reignited in 2006 by then Indigenous affairs minister Mal Brough, following a controversial sentencing decision by an NT judge.

It came in the midst of a media frenzy over NT Crown Prosecutor Nanette Roger’s interview on ABC’s Lateline program, where she described horrifying instances of child sexual abuse in Aboriginal communities. Amendments to the Commonwealth’s Crimes Act passed Parliament later that year, forbidding NT courts to consider customary law as a mitigating circumstance.

When the 2007 Northern Territory Emergency Response Act 2007 passed the next year, it forbade taking customary law into account for bail or sentencing.

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