Patrick Dodson. NT Library, March 2012.

“Bad Law of the Week” will be an (ir)regular feature looking at my choice – or your nominations – of legal measures that are but should no longer be on the statute books.

I can think of a half-dozen candidates off the top of my head. I’m sure that readers will be able to supply plenty more.

As I’ve said elsewhere, last Friday evening I joined one hundred or so locals at the Northern Territory Library in Darwin for the second biennial Tony Fitzgerald Memorial Lecture.

The main act was Paddy Dodson but in the course of an excellent introduction by senior criminal NT lawyer and President of the Criminal Lawyers Association of the Northern Territory, Russell Goldflam – for mine the undoubted leader of the Alice Springs Bar – he reminded all present of a particularly shameful blot on the Territory’s legal ledger.

Here is what Russell had to say about Fitzy and section 91 of the Commonwealth’s Northern Territory Emergency Response Act (the NTER):

I want to come back, in the tradition of former CLANT stalwart and reluctant criminal lawyer Tony Fitzgerald (who preferred negotiation to adversarial litigation), to a particular feature of the Intervention which, to a criminal lawyer, is particularly obnoxious, and particularly at a time when, as a nation, we are seriously considering the inclusion in our Constitution of a statement respecting the cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples.

I’m talking about section 91 of the Northern Territory National Emergency Response Act, which forbids a court from taking into account ‘any form of customary law or cultural practice’ when determining the seriousness of an offence for sentencing purposes.

This isn’t respect. It is disrespect.

It is discriminatory, and it is a disgrace.

At this point in our history what this country arguably needs is a good healthy dose of respect. And if there’s a man in this country who can talk us into taking our medicine, it is our speaker tonight, Professor Patrick Dodson.

Section 91, as the Explanatory Memorandum for the Act explained, ensures:

“…that no customary law or cultural practice excuses, justifies, authorises, requires, or lessens the seriousness of any criminal behaviour with which the Crimes Act is concerned.”

Section 90 – s. 91’s bastard sibling – does the same for bail conditions.

That sections 90 and 91 have been the subject of trenchant criticism from the legal profession and elsewhere is unsurprising. The following, from the National Native Title Council’s submission to the excellent – but largely ignored – Northern Territory Emergency Response Review, was a typical example:

The NNTC considers that such blanket prohibition on taking into consideration any form of customary law or cultural practice in the exercise of discretion in relation to bail applications and in determining criminal sentences is contrary to the human rights of Aboriginal people in the Northern Territory.

First, such a prohibition requires decision-makers to treat Aboriginal and Torres Strait Islanders as if they do not belong to a specific cultural group, and ignores the reality of customary law for many indigenous Australians. This is contrary to article 27 of the ICCPR, and many of the rights in the recently adopted United Nations Declaration on the Rights of Indigenous Peoples.

Second, as the Law Council of Australia submitted to the Senate Legal and Constitutional References Committee hearing in August 2007, such a prohibition will result, in practical terms, in more Aboriginal people being incarcerated, for longer periods, with fewer options for rehabilitation within their communities.

This undermines the positive achievements of Aboriginal courts, which have relied on flexible sentencing and bail options and community involvement in strengthening Aboriginal law, empowering Aboriginal leadership and, ultimately, reducing rates of recidivism.

In the NT, Justice Steven Southwood’s judgement in the 2009 case of R v Wunungmurra is the most thorough analysis of s. 91’s application.

He noted that by enacting the provisions in s. 91:

 “… the Australian Parliament intended to alter the well established sentencing principles applying in the Northern Territory accordingly. So much is irresistibly clear from the express terms of s 91 of the Emergency Response Act and the context in which the legislation came to be enacted.”

That s. 91 distorts long-established judicial practices and sentencing principles is irrelevant, the court is bound by the legislation — however:

“… unreasonable or undesirable [it may be] because it precludes a sentencing court from taking into account information highly relevant to determining the true gravity of an offence and the moral culpability of the offender, precludes an Aboriginal offender who has acted in accordance with traditional Aboriginal law or cultural practice from having his or case considered individually on the basis of all relevant facts which may be applicable to an important aspect of the sentencing process, distorts well established sentencing principle of proportionality, and may result in the imposition of what may be considered to be disproportionate sentences, provides no sufficient basis for not interpreting s 91 of the Emergency Response Act in accordance with its clear and express terms. The court’s duty is to give effect to the provision.”

Southwood J also heard the appeal to the Supreme Court from the first instance decision of NT Magistrate Michael Carey in the Numbulwar “Intervention Toilet on a Sacred Site” case, which I’ve written about here, here and here.

One truly obnoxious effect of s.91 emerged during the hearing of that appeal.

As I wrote in January 2011:

That s. 91 of the NTER Act can now be used to deny consideration of the hurt and suffering felt by the custodians of the sacred site at Numbulwar is surely a bizarre — and hopefully unintended — consequence.

As Kim Hill, the chief executive of the Northern Land Council, which is responsible for the administration of the Aboriginal Land Rights Act in the Top End of the NT, noted:

“If the desecration had occurred in relation to a Greek Orthodox Church, any Territory or Australian Court could receive and properly consider evidence about the effect of the desecration had on the Greek community, but because of s 91, no such consideration can be given to the level of cultural harm inflicted on Aboriginal peoples.

If the powers that be won’t listen to the clarion calls for the scrapping of this bad law might we not be able to learn from experience in other jurisdictions?

A few weeks ago Canada’s Supreme Court delivered it’s judgement in the matter of Manasie Ipeelee v The Queen.

Ipeelee’s case concerned two appeals by Aboriginal offenders with long and violent criminal records.

Ipeelee’s case is important – no less so in Australia than Canada – because the Court there confirmed an earlier decision but also the recognised the effect of a legislative provision that, correctly in my view, entrenches long-held-precious judicial responsibilities and principles in the sentencing process – responsibilities and principles that sections 90 an 91 of the NTER Act trash.

In Ipeelee the Court held that:

When sentencing an Aboriginal offender, a judge must consider the factors outlined in R. v. Gladue, [1999] 1 S.C.R. 688: (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. Systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness.

Failing to take these circumstances into account would violate the fundamental principle of sentencing — that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and to recognize that, given these fundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community.

The principles from Gladue are entirely consistent with the requirement that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them. Gladue affirms this requirement and recognizes that, up to this point, Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process. Section 718.2(e) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples.

And I have no doubt that Tony Fitzgerald would have have more than a few words to say about Ipeelee’s case.

Here is Russell Goldflam again speaking about our friend:

Fitz was a fighter, in the best sense. It’s entirely characteristic of the man that a few short months before he passed away, he fired off a fiercely and fearlessly critical submission to the Northern Territory Emergency Response Review. Unsurprisingly, as the Territory’s Anti-Discrimination Commissioner, he particularly focussed on the Intervention’s suspension of the Racial Discrimination Act.

That has since been at least partially rectified, thank goodness.

But Fitz went a great deal further. Not only did he criticise in detail many features of the Intervention, but he left us a blueprint for a different approach to Indigenous policy, one based on long-term initiatives and constructive engagement, regional flexibility, and community partnerships. A blueprint, in other words, for reconciliation.

Sections 90 and 91 of the NTER are bad law. That they remain on the statute books is, in the words of Russell Goldflam, obnoxious, disrespectful and disgraceful.

 Got a nomination for a future “Bad law of the Week”? Write it up yourself or drop me a line here at Crikey and I’ll have a squiz!