Cultural Background and Customary Law
- Part 6 of the NTER Act contains provisions prohibiting the taking into consideration of any form of customary law or cultural practice in mitigation (or aggravation) in decision-making in relation to bail and in sentencing.
- In relation to bail, s 90(1)(b) provides that in determining whether
to grant bail to a person charged with, or convicted of, an offence against
a law of the Northern Territory, or in determining conditions to which bail
granted to such a person should be subject, a bail authority:
“(b) must not take into consideration any form of customary law or cultural practice as a reason for:
- excusing, justifying, authorising, requiring or lessening the seriousness of the alleged criminal behaviour to which the alleged offence relates, or the criminal behaviour to which the offence relates; or
- aggravating the seriousness of the alleged criminal behaviour to which the alleged offence relates, or the criminal behaviour to which the offence relates.”
- Similarly, in relation to sentencing, s 91 provides that in determining the sentence to be passed, or the order to be made, in respect of any person for an offence against a law of the Northern Territory, a court must not take into account any form of customary law or cultural practice as a reason for “(a) excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or (b) aggravating the seriousness of the criminal behaviour to which the offence relates.”
- 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.